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    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

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    Criminal Procedure

    Sentencing – Consideration of Expunged Convictions

    State v. Allen, 2017 WI 7 (filed 9 Feb. 2017)

    HOLDING: The circuit court did not erroneously exercise its sentencing discretion when it considered the fact that the defendant had successfully completed supervision in a previous case for which the record of conviction had been expunged.

    SUMMARY: The defendant was convicted of homicide by intoxicated use of a vehicle and causing great bodily harm by intoxicated use of a vehicle. The presentence investigation report (PSI) informed the court that the defendant had a prior conviction for substantial battery that had been expunged. (Editors’ Note: “If a record of conviction is expunged, the court records for that case are destroyed by the clerk of court” (¶ 9).) At sentencing in the current case, the judge considered the defendant’s successful completion of supervision in the expunged case and his failure to learn from that experience; the court believed this information was relevant to an assessment of the defendant’s character and behavior.

    The defendant filed a postconviction motion requesting a new sentencing hearing; he claimed that State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, prohibited the sentencing court from considering that he had previously completed supervision in a case for which the record of conviction had been expunged pursuant to Wis. Stat. section 973.015. The circuit court denied the motion. In a published decision, the court of appeals affirmed. See 2015 WI App 96.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a majority opinion authored by Justice Ann Walsh Bradley, the supreme court affirmed the court of appeals. It concluded that “the sentencing court did not erroneously exercise its discretion when it considered the fact that Allen had previously successfully completed supervision in a case where the record of conviction had been expunged. Under Leitner, a circuit court is permitted to consider not only those facts underlying the crime itself, but also all of the facts underlying an expunged record of conviction provided those facts are not obtained from expunged court records. Because the references to Allen’s expunged record of conviction in the PSI and at sentencing were obtained from sources other than expunged court records, they are permitted under Leitner” (¶ 3).

    The court rejected the defendant’s arguments that 1) Leitner should be interpreted to permit consideration only of the facts or behaviors underlying the crime itself, rather than of all the facts underlying the expunged record of conviction; and 2) a sentencing court may consider only facts underlying a prior expunged record of conviction if those facts are interrelated with the facts underlying the offenses for which a defendant currently is being sentenced (see ¶ 24).

    Said the majority, the defendant “reads Leitner too narrowly…. [A] defendant’s behavior on supervision is relevant to a sentencing court’s consideration of his future behavior and overall character. Leitner does not require interrelated facts between the crime underlying a prior expunged record of conviction and the facts underlying a current criminal conviction. It allows consideration of all facts underlying an expunged record of conviction, not just the facts underlying the crime itself provided those facts are not obtained from expunged court records” (¶ 27).

    Justice Abrahamson filed a concurring opinion.

    Motor Vehicle Law

    Operating While Intoxicated – Implied Consent Law – Withdrawal of Blood by a Person “Acting Under the Direction of a Physician”

    State v. Kozel, 2017 WI 3 (filed 12 Jan. 2017)

    HOLDINGS: 1) The emergency medical technician (EMT) who took an implied-consent blood draw from the defendant was “a person acting under the direction of a physician” within the meaning of Wis. Stat. section 343.305(5)(b), and 2) the manner in which the blood draw was taken was constitutionally reasonable.

    SUMMARY: This case concern’s Wisconsin’s implied-consent law and the provision therein authorizing the withdrawal of blood by “a person acting under the direction of a physician.” See Wis. Stat. § 343.305(5)(b).

    After being arrested for drunk driving, defendant Kozel was taken to the Sauk County jail, where he agreed to have his blood drawn. In a clean room at the jail, an EMT, trained in drawing blood and acting at the request of a law enforcement agency, used a new blood-draw kit containing a sterile needle to take samples of Kozel’s blood. The EMT, who was employed by the Baraboo District Ambulance Service (BDAS), was authorized in writing by Mendoza, a physician and the medical director of the BDAS, to draw blood when asked to do so by law enforcement officers.

    Kozel argued that the blood-test results must be suppressed because the EMT who drew Kozel’s blood was not a “person acting under the direction of a physician” as required by the implied-consent statute and because the blood draw was taken in a constitutionally unreasonable manner under the Fourth Amendment to the U.S. Constitution and its counterpart in the Wisconsin Constitution. The circuit court denied the suppression motion.

    In an unpublished decision, the court of appeals reversed the circuit court. In a majority opinion authored by Justice Ziegler, the supreme court reversed the court of appeals.

    The supreme court concluded that the EMT was “acting under the direction of a physician” when he drew the defendant’s blood. “The evidence below showed that Dr. Mendoza, the medical ‘director’ of BDAS of at least seven years, specifically ‘authorized a standing order’ for BDAS EMT intermediate technicians such as [the one here] to perform blood draws when requested to do so by law enforcement. A ‘standing order’ is ‘an instruction or prescribed procedure in force permanently or until specifically changed or canceled.’ Dr. Mendoza’s authorization was formalized in a writing which also contained his confirmation that the EMTs had ‘completed extensive training regarding the procedures and legalities of obtaining blood draws.’ Finally, [the EMT] was able to contact Dr. Mendoza if necessary when performing a blood draw” (¶ 36) (citation omitted).

    “This evidence demonstrates that BDAS EMTs are acting under Dr. Mendoza’s direction. The concept of ‘direction’ reasonably contemplates varying degrees of proximity between a director and the person whose actions he or she guides rather than a single, set relationship applicable in all cases. Had the legislature envisioned only one manner of ‘direction,’ it would have spelled out the specific procedures that a physician and the person he or she directs must follow to meet that requirement” (¶ 37).

    The court further concluded that the manner in which the defendant’s blood was drawn was constitutionally reasonable under the Fourth Amendment. First, “it was not unreasonable for an EMT, as opposed to a physician, to draw Kozel’s blood…. The important point for constitutional purposes is that the evidence demonstrated that [the EMT] was thoroughly trained and experienced in properly drawing blood. Additionally, if any medical issues arose for which [the EMT] was not equipped, [the EMT] had access [by phone] to physicians who could assist” (¶ 44).

    Second, it was not unreasonable for the blood draw to occur in the nonmedical setting of the jail. The evidence indicated that the room where the draw occurred was “clean” and that the EMT used a new blood-draw kit with a sterile needle (¶ 45). Finally, there was no evidence that the defendant ever objected to the particular circumstances of the blood draw (see ¶ 46).

    Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.